Appeal against 43 B..

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This query is : Resolved

sn (Querist)

21 January 2009 An AO disallowed payments not made for service tax and VAT which were actually not paid before the filing of the return u/s 139 of the Act.The AO made addition to the same as they were mentioned in the audit report as payments not paid.The AO imposed penalty u/s 271(1)(c)as concealment though it has been held in the case of Akshay Enterprises (P) Ltd. vs. ACIT – (2007) 161 Taxman 168 (Amritsar)that- that as material facts necessary for dis allowance were duly disclosed in audit report filed with Return of Income,the assessee’s contention was being genuine, bonafide and innocent mistake was accepted, and that penalty cannot be imposed, as there was no malafide intentions on the part of assessee to conceal income.
My Queries are
1) Should we go for appeal against the assessment order u/s 143(3)or will that consitute as genuine bonafide mistake not accepted.
2) If we don't go for appeal against the assessment order u/s 143(3)as it may go against us as not accepting the bonafide mistake. Will we be able to go against the order of penalty u/s 271(1)(c) only claiming our mistake as bonafide so that no penalty can be imposed of concealment as all the facts were clearly stated in the audit report.